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ELCDismissedCivil Suit No 196 of 2013 (O.S)· [2013] KEELC 8 (KLR)

David Mwangi Mwango v John Mwangi Kimani [2013] KEELC 8 (KLR)

Environment and Land Court of Kenya
3 November 2013
LWL N Waithaka
908 words in judgment
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The bottom line

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The Environment and Land Court dismissed a land buyer's bid to be declared owner because he sued the wrong person and never properly served the vendor living abroad.

What this practically means

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Executive summary

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The applicant brought an originating summons dated 13th September 2011 seeking to be decreed the absolute owner of parcel Rare/Teret/Block 1/1151, which he alleged he purchased from the respondent on 13th April 1994. He claimed the respondent executed the sale agreement, signed transfer forms and obtained Land Control Board consent, but the transfer was never completed owing to a boundary dispute and the Land Registrar's demand for the vendor's photograph, PIN and identity card, which could not be obtained because the respondent had left Kenya over 14 years earlier. The applicant obtained leave for substituted service by newspaper, which was effected, and the matter proceeded by way of affidavit evidence and written submissions. The court declined to consider the written submissions filed by B.I Otieno & Company Advocates because the firm had never filed a notice of appointment and was not properly on record. The court found that the procedure under Order 5 Rules 21, 22, 25, 27 and 28 of the Civil Procedure Rules 2010 for serving a party in a foreign country was not followed, and that the substituted service was merely an academic exercise, so the respondent was not properly served. Relying on Haas v Wainaina, the court held that judgment cannot be entered against a defendant in vacuo and, in any event, the applicant's hurdles at registration were not occasioned by the respondent; his claim lay against the Land Registrar, who was the proper party. The suit was dismissed with no order on costs.

Key legal issues

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01

Validity of substituted service where the respondent is abroad

Holding

Service on a party in a foreign country must follow Order 5 Rules 21, 22, 25, 27 and 28 of the Civil Procedure Rules 2010; newspaper substituted service was an academic exercise and the respondent was not properly served

Reasoning

The applicant knew the respondent had left the country over 14 years earlier and his whereabouts were unknown, yet opted for substituted service through a national newspaper. The court held the statutory procedure for effecting service upon a party in a foreign country was not followed, rendering the service ineffective.

p. 2
02

Whether the applicant proved a claim against the respondent

Holding

No claim was established against the respondent; the proper defendant was the Land Registrar who declined to register the transfer

Reasoning

The applicant purchased the land in 1994, the vendor executed the agreement, transfer forms and obtained land control consent, but registration stalled due to a boundary dispute and the Registrar's demand for the vendor's photograph, PIN and identity card. The hurdles were not occasioned by the respondent, so no claim lay against him; judgment could not be entered in vacuo.

p. 2

Legal principles established

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  • Judgment cannot be entered against a defendant in vacuo; the defendant must be told what the plaintiff's claim against him is
  • Where a party's claim lies against a third person (here the Land Registrar) who refused to effect registration, that person is the proper party to be joined, not the vendor

Court orders

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  1. 1.The originating motion/suit is dismissed
  2. 2.No order on costs

Authorities

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Legislation

  • Civil Procedure Rules 2010Order 5 Rules 21, 22, 25, 27 and 28

Cases cited (1)

  • Haas v Wainaina
    (1982) eKLR
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over disputes relating to title to land (originating summons under the Civil Procedure Rules)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (8)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "David Mwangi Mwango v John Mwangi Kimani [2013] KEELC 8 (KLR)", Case Analysis (2013). Civil Suit No 196 of 2013 (O.S). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2013/8/eng@2013-11-03

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.